Your Right to Know

A federal appeals court dealt another blow today to Republicans seeking to limit ballot access, ruling in a case involving provisional ballots cast by qualified voters but rejected because of poll-worker errors.

A three-member panel of the 6th U.S. Circuit Court of appeals today upheld the major part of a July 27 ruling by U.S. District Court Judge Algenon Marbley. The ruling dealt with provisional ballots, which are cast by voters whose information doesn’t match up with county elections records, don't have proper ID, or other similar reasons. In the past, those ballots have been held and counted later – but only if the voter is verified.

At stake are tens of thousands of provisional ballots cast but not counted in previous elections, often because voters were in the wrong precinct of multi-precinct polling places. These are often called “right church/wrong pew” ballots. Marbley also ordered counting of provisional ballots that lacked required documentation, such as a signature, on the ballot envelope.

In its ruling, the appeals court panel – which included former Ohio Supreme Court Justice Deborah Cook – faulted the state, saying rejecting such provisional ballots would “disqualify thousands of right-place/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote.”

“Ohio has known for years that it has serious problems with its provisional ballot rules,” said Bob Kengle, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, in a statement. “We are very happy with the court’s wrong-precinct ruling, but it is unfortunate that it still is necessary for the federal courts to intervene to protect the rights of Ohio’s voters.”

“This is a great victory for Ohio voters,” said Daniel P. Tokaji, professor at Ohio State University’s Moritz College of Law. “It vindicates the fundamental principle that voters shouldn't have their votes rejected because of someone else's mistake.”

The appeals court sent back to Marbley for clarification the matter of ballot envelope identification.

The lawsuit in the case was filed by the Service Employees International Union and homeless rights advocate.

Ohio Secretary of State Jon Husted did not take part in the appeal of “right church/wrong pew” case, but argued that provisional votes without signatures should be disqualified.